Martin & Sellers v. Crocker

Adams, J. Three questions are certified, but it will be sufficient for tbe disposition of this case to determine one of them. Tbe question is in these words: “When an appeal is taken or allowed from a justice of tbe peace, under section 3580 of tbe Code, after tbe lapse of more than twenty days -from tbe rendition of tbe judgment, and an appeal bond is filed to stay proceedings and to perfect tbe appeal, is tbe appellee entitled [329] to judgment against tbe principal and sureties on bis bond, or either of them, for the judgment in the justice’s court, in this court?” Appeals from a justice of the peace must be taken within twenty days from the rendition of the judgment. Code, § 3576. The alleged appeal in this case, having been taken after the lapse of twenty days, was in effect no appeal. There was, then, really no appeal to dismiss. Strictly, we think that the plaintiffs should have moved to strike the case from the docket, on the ground that no appeal had been taken in the case. But the dismissal of the alleged appeal was equivalent to striking the case from the docket. We do not think that the court had jurisdiction to render any judgment except for costs. The plaintiffs rely upon section'3580 of the Code, which provides that where the appeal is dismissed judgment shall be rendered on the bond. But we think that the provision has application to a case where there has been an actual appeal. In our opinion the question certified should be answered in the negative, and the judgment Affirmed.